Why do I need a will?
When a person dies without a will, he or she is said to have died intestate. There are two consequences to this:

1. If there is anything to be done to distribute the estate, such as cashing RRSP's or selling property, someone must be appointed and given the authority to do so, as no-one has the authority to sell another person's property, even if it was the deceased person's wish. This means that a court proceeding must be started, an expense which is paid out of the estate and which might otherwise not have been necessary.
   
2. The property owned by the deceased (referred to as her estate) is distributed according to the law, which usually means that the husband or wife of the deceased receives a share and the children of the deceased receive the rest. This will take place regardless what the deceased person wanted and it is very difficult to arrange for any other arrangement or to implement any particular wishes of the deceased in terms of giving property to a particular person.

Can I state in my will who would have custody of my children if I die?
If you are the only person who has legal custody of a child who is under the age of eighteen, you can appoint someone to have temporary custody of that child in the event of your death. However, this appointment is only good for 90 days, after which anyone can apply to the court for custody of the child. Such an application would be decided based solely on the best interests of the child.

I was named as executor of my friend's will and his son had power of attorney. Who can distribute the estate?
Once a person dies, any Power of Attorney she executed no longer has any legal effect and the person named as the Attorney in the Power of Attorney must release the property to the person in charge of the estate, either the executor under the will or the administrator named by the court. As executor under the will, you have legal authority to deal with any assets owned by the estate. You are entitled to obtain information regarding the deceased person's property and debts and to deal with them as directed by the Will.

My friend died and he owned a house. Do I have to sell it or can I rent it until property values improve?
If the will does not state whether the house is to be sold or not, the will probably gives the executor the choice of whether to sell or rent. However, all rents received would belong to the estate.

My brothers and I were named as executors of my father's estate and we can't agree on whether to sell his house or keep it.
If there is more than executor named under a will and the executors cannot agree, then someone will have to apply to the court for an order stating what is to be done with the assets of the estate.

I was executor of my husband's estate and after the estate was distributed I was contacted by a creditor who was owed a substantial amount of money. There is now no money in the estate to pay this creditor and he says that I have to pay him personally.
If the executor of an estate distributes the assets of the estate without ensuring that all of the creditors of the deceased or the estate are paid and without advertising for creditors, the executor may be required to personally pay any creditors who should have been paid out of the estate.

My sister is the executor of my father's estate and has not distributed the estate, even though my father died two years ago. How long does it take?
There is no rule as to how long it will take to wind up an estate. Usually it will take 6 to 9 months if the estate is not complicated and there are no disputes as to who is entitled to share in the estate. The procedure may be delayed if there is property to be sold, which could take 6 to 8 months, or if beneficiaries cannot be located or if the will is not clear as to what is to be done.

What do I do if my sister refuses to finish winding up my mother's estate?
If you are entitled to a share in an estate and you cannot get the executor of an estate to distribute the assets, you can apply to the court for an order requiring him to distribute the estate or an order that he be removed as executor and that another person (such as yourself) be appointed to complete the administration of the estate.

Will there be taxes on the assets of the estate?
Although there are no estate taxes in Ontario, the executor must file an income tax return for the year that the deceased person died, as well as for the period that it takes to wind up the estate. As well, there are certain fees which will have to be paid, such as probate fees if the will has to be probated.

One situation which will result in significant income tax being payable by the estate occurs where a deceased owned property which has increased in value since he bought it. When he dies, his estate is treated as if it sold the property, which may result in what is known as a "capital gain". Because the government has taken away some of the loopholes regarding capital gains, the estate may have to pay income tax on the amount of the increase in value of the property. This tax will have to be paid even if the property is the only asset in the estate and it is given to a person directly. If the person who was to receive the property is unable to pay the income tax owed by the estate, the property will have to be sold to pay the tax.

How can I prevent my estate having to pay tax when I die?
There are a number of ways to reduce or eliminate the amount of tax that your estate will have to pay. However, the question of what method is appropriate depends entirely on the amount of assets that are owned, what type of assets are owned and what the individual wants to do with the assets on his death. Please call for a free consultation in order to determine what steps if any ought to be taken to reduce the income taxes that will have to be paid by the estate.